February 27, 2018

Harris, Feinstein File Supreme Court Amicus Brief to Protect Women’s Access to Information about their Rights & Healthcare Services

WASHINGTON, D.C. – Led by U.S. Senators Kamala D. Harris and Dianne Feinstein (both D-Calif), 14 Senators, and 85 House Members filed a bicameral amicus brief today in the Supreme Court Case National Institute of Family and Life Advocates (NIFLA) v. Becerra. A copy of the brief can be found here.

In this case, groups opposed to comprehensive women’s health services are challenging California’s Reproductive FACT Act which requires certain reproductive health providers to disclose to women through postings or handouts their rights under California law, as well as services available to them in the state. As California Attorney General, Harris co-sponsored the “Reproductive FACT Act” and successfully defended the law in the face of constitutional attacks in the 9th U.S. Circuit Court of Appeals.’

“We must continue to fight to defend and expand the progress made for women’s rights and reproductive health in the face of relentless attacks,” said Senator Harris. “Women should not only have equal access to services, but deserve the right to have all the facts they need to make informed decisions about their own health and their lives.”

“California has led the country in protecting women’s health and ensuring women get the health care they need,” said Senator Feinstein. “Our state has a strong interest in ensuring women have accurate information about how to get care and their rights under our laws. This is no different than many federal laws that inform patients, consumers, and workers of their rights. Ensuring women have access to factual information about the law in no way violates the First Amendment.

The Constitutional Accountability Center filed today’s brief on behalf of Members of Congress. CAC President Elizabeth Wydra said, “Day in and day out, people in America see disclosures that inform them of their rights, or of services available to them under federal law—whether from their employer, their health care provider, or their insurer. Consumers should be informed of their rights and benefits under the law, and how to exercise them. Requiring service providers to provide this information has never violated the Constitution before, and the Court shouldn’t change that now.”

The brief makes the following arguments:

First, the First Amendment permits the government to require service providers to disclose to patients or customers a list of rights they possess. Such requirements are commonplace in federal law. For instance, every day, because of such disclosure requirements, individuals learn of federal rights they possess, including rights to medical privacy, to continuing insurance coverage after loss of employment, and to insurance coverage for hospital stays of at least two days following childbirth, among others.

Such rules, which reflect the fact that many individuals are not aware of the rights they possess, help ensure that statutorily created rights are enjoyed by the people they protect without real interference with freedom of speech.  

Second, the Supreme Court has held in numerous contexts that a requirement of disclosure is constitutionally permissible because it is a less restrictive alternative to direct regulation of speech. This is particularly true in the context of commercial and professional speech, where the First Amendment protects the free flow of truthful information. Thus, NIFLA is free to counsel women however it wishes, but it is not free to keep women in the dark about the rights California has provided to women seeking reproductive health care.

In addition to Sens. Harris and Feinstein, the brief was also signed by Senators Patty Murray (D-WA), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Catherine Cortez Masto (D-NV), Tammy Duckworth (D-IL), Maggie Hassan (D-NH), Mazie Hirono (D-HI), Tim Kaine (D-VA), Ed Markey (D-MA), Bernie Sanders (I-VT), Jeanne Shaheen (D-NH), Tina Smith (D-MN), Elizabeth Warren (D-MA), and Ron Wyden (D-OR).

Additional information: Oral arguments will be heard on March 20th. An amicus brief, or “friend of the court” brief, can be filed in order to address concerns and advise the Court on a matter of law that directly affects the case at hand.

###